The government’s baffling brief in Ba Odah

Tariq Ali Abdullah Ba Odah is a detainee at Guantánamo who the government has determined to be a member of al Qaeda and/or Taliban forces.  Ba Odah filed a petition for habeas corpus to challenge that determination, but he never made efforts to defend the petition (he filed no traverse in response to the government’s factual return and sought no discovery), and he voluntarily dismissed it in March 2014.  Even so, the President’s GTMO Task Force concluded that Ba Odah ought to be transferred back to his home nation of Yemen, or elsewhere, if and when “the security situation in Yemen improves[] [or if] an appropriate rehabilitation program or third-country resettlement option becomes available[.]”  A State Department spokesperson recently said that the administration was working on finding a nation to which it might transfer Ba Odah; however, according to Charlie Savage, the State Department apparently does not yet “have any deal in place to relocate Mr. Ba Odah.”

Ba Odah has been on a hunger strike since 2007, during which time his weight has dropped from 133 to 74 pounds.  In June 2015, Ba Odah’s attorneys made a motion to Judge Thomas Hogan to “reinstate” his habeas petition, and to order the government “to take all necessary steps to facilitate his release from Guantánamo without further delay,” in light of his deteriorating medical condition.

The Department of Justice has opposed the motion, in a memorandum that was publicly filed in slightly redacted form on Monday.  Much of that brief is fairly unremarkable.  The government acknowledges that Ba Odah’s “current health” is “poor,” and that the GTMO Senior Medical Officer “remains very concerned” about Ba Odah’s declining health.  Yet when it comes to the most important legal question in the case, the brief is strangely silent:  Except for a conclusory sentence in the introduction, the government does not say whether or not Ba Odah is legally entitled to medical repatriation or transfer based upon the criteria listed in Article 110 of the Third Geneva Convention–namely, whether he is unlikely to recover his health within one year, and whether his mental or physical fitness seems to have been gravely diminished.  Instead, the government argues that the habeas court is disabled from even considering such questions.  Such an argument–that the habeas courts must stay out of the picture altogether–has, to say the least, not fared well when the government has previously raised it in the context of GTMO (see, e.g., Boumediene).  It is unlikely to carry the day this time, either, particularly because the government cites virtually no authority in support of it.  Moreover, and as I explain further below, the most disconcerting thing about the government’s position is that although it insists that Judge Hogan defer to the Executive’s determination on the legal question . . . it never explains what that determination is.

Ba Odah’s principal argument is that section 3-12 of Army Regulation 190-8 entitles him to repatriation to Yemen, his country of origin.  The DOJ brief is largely devoted to addressing this claim.  DOJ argues that Regulation 190-8 does not apply to a detainee in a noninternational conflict such as Ba Odah and that, even if the regulation did apply to him, Ba Odah would not qualify for medical repatriation because the regulation does not entitle detainees who refuse medical treatment for their condition to such relief from detention.  I am hardly an expert on medical repatriation, or on Army Regulation 190-8, but the DOJ arguments on this score strike me, at least on first read, as persuasive.  But cf. Al Warafi.

Even so, Ba Odah also raises another, more compelling, argument, based upon the fact that the Government’s authority to detain him under the 2001 AUMF is informed and constrained by principles of detention reflected in the Third Geneva Convention.  That treaty deals largely with the treatment of Prisoners of War in an international armed conflict; however, and as the government agrees, the scope of the government’s detention authority under the AUMF in this noninternational conflict is informed by the principles contained in GCIII, as Justice O’Connor’s governing opinion in Hamdi instructs.  As DOJ explained in its March 13, 2009 habeas brief,  for example, “[t]he President . . . has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.”

The pertinent provisions of GCIII with respect to medical repatriation and transfer are Articles 109 and 110.  Those articles reflect the common-sense notion, and longstanding law-of-war principle, that because the justification for detaining enemy forces is to prevent them “from returning to the field of battle and taking up arms once again,” Hamdi, such detention is no longer justifiable in cases where the individual is so disabled that it is highly unlikely he will “tak[e] up arms again.”  Thus, Article 109 provides that “Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of [Article 110].”  That referenced “first paragraph” of Article 110, in turn, provides that the following three categories of POWs “shall be repatriated direct”:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

In the case of Ba Odah, then, the pertinent questions are (i) whether he would be entitled to medical repatriation pursuant to GCIII articles 109 and 110 if he were a POW in an international armed conflict and, if so, (ii) how Articles 109 and 110 should inform the analogous question in a noninternational armed conflict, such as the one between the U.S. and al Qaeda.

Ba Odah himself argues that, at a minimum, he falls within the second category of persons listed in Article 110, i.e., a “sick” detainee who, “according to medical opinion, [is] not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished.”

What’s the government’s response to this Article 110-based argument?  Remarkably, the DOJ brief does not say, one way or the other, whether Ba Odah would qualify for repatriation under Article 110 and, if so, whether there is any reason why the AUMF should be construed not to require such repatriation in the context of this noninternational armed conflict.  Instead, DOJ simply tells Judge Hogan that such questions are none of his business:  “[H]ow the Article 110 standard may operate in a given conflict and, especially, how it may apply to an individual detainee is not an appropriate matter for judicial review.”

This assertion is not likely to go over very well with Judge Hogan, especially because the government does not cite any authority for the proposition that the judiciary is precluded from assessing the medical repatriation question.  If a habeas court can adjudicate whether a detainee is a member of al Qaeda forces (Hamdi), or the contours of covered “substantial support” or “associated forces” covered by the AUMF (see my post with Steve), or (as in Al Warafi) whether a GTMO detainee is entitled to the protection due “medical personnel” under the First Geneva Convention, why can’t the judge also assess whether the Article 110 standard is met and, if so, how that standard applies to this noninternational armed conflict?

The government’s main argument for judicial disability is that Article 110 itself expressly contemplates that the “Parties” to the armed conflict will try to reach “special agreements . . . to determine the cases of disablement or sickness entailing direct repatriation,” and that the historical norm has, in fact, been (as in the Korean War) that “the exchange among the belligerents of sick and wounded prisoners of war . . . occur[s] as a result of extensive initiatives and Executive negotiations.”  That is no doubt true–like all detainee transfers in all conflicts, most such repatriations are effected by negotiations between Parties’ executive branches, without judicial involvement–but it says nothing at all about the role of habeas courts within one of the state Parties in a case where the treaty standard is (arguably) satisfied but the Executive has failed to make any such arrangements.  The treaty certainly does not suggest that such questions must be reserved to a Party’s executive branch, or that they are not fit for judicial review.

The government also argues that the “interpretation and application of [the Article 110] standards” allegedly “involve matters in which the Executive is uniquely competent and for which the Executive should be accorded great deference.”  At most, however, that would only be grounds for the habeas court to accord some deference to the Executive on the factual questions of whether Ba Odah is “not likely to recover within one year” and whether his “[his] mental or physical fitness seems to have been gravely diminished.”  It doesn’t support the proposition that the habeas courts are precluded from adjudicating the repatriation question–the question of whether the previously lawful detention remains lawful–altogether.

Moreover, even as to the brief’s assertion that courts should defer to the executive, the government does not cite any authority other than a couple of cases in which the Supreme Court has afforded “great weight” to the Executive’s interpretation of a treaty.  Such cases might be relevant if the government were offering an interpretation of Article 110 that it was asking the court to adopt or affirm.  But it does not offer any such interpretation.

Indeed, the most befuddling thing about the government’s filing is that it urges the court to afford conclusive deference to the Executive’s assessment of whether Ba Odah is entitled to repatriation under Article 110 standards, without ever saying what that Executive assessment is.  The brief does not even dispute Ba Odah’s argument that he is entitled to repatriation, apart from a conclusory sentence at the outset of the brief–unaccompanied by any argument or citation of authority–that Ba Odah’s weight loss and its potential consequences “do not alter . . . the lawfulness of Petitioner’s detention.”  The brief is at pains to affirm that “the Executive Branch respects those principles [in Article 110] and takes them into account when determining whether it should continue to detain individuals in the circumstances of this non-international armed conflict.”  OK, but that then begs the obvious questions:  Does the Executive believe that Ba Odah is “not likely to recover within one year”?  That his “mental or physical fitness seems to have been gravely diminished”?  That repatriation is not required in this noninternational armed conflict even if those Article 110 conditions are met?  Almost inexplicably, DOJ does not say.

So even if Judge Hogan were at all inclined to give deference to the Executive’s determinations, how could he do so without knowing what those determinations are?

A very strange filing . . .

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).